Must a plaintiff's lawyer who testified at a pretrial venue hearing withdraw from the trial, and can a stand-in lawyer be used to avoid the disqualification?

Plain-English summary

A plaintiff's lawyer testified at a venue hearing about a defendant's pre-suit statements regarding where he conducted his business. The venue issue was resolved by the court and would not recur at trial. The committee was asked whether the lawyer could continue to represent the plaintiff. The controlling rule was DR 5-102(A), the witness-advocate rule, which requires a lawyer (and his firm) to withdraw from the trial when the lawyer ought to be called as a witness for the client, subject to the narrow exceptions in DR 5-101(B)(1)-(3) (uncontested or formal matters, the value of legal services, or substantial hardship).

The committee found none of the exceptions applied: the venue issue was contested and not a formality, and the substantial-hardship exception, narrowly construed, was not shown. Although the venue testimony was given outside the presence of any jury, the committee held the witness-advocate rule is not limited to jury matters; its policies (protecting the client from an impeachable interested witness, fairness to the adverse party, and the integrity of the judicial system) apply equally before a judge. Unlike Model Rule 3.7, which the committee read as not disqualifying a lawyer who testifies only in a pretrial proceeding, DR 5-102(A) did not allow treating the venue hearing and the trial as separate proceedings. The committee concluded the lawyer could not continue to conduct the litigation after testifying at the venue hearing.

The committee also rejected a workaround: using a separate, unaffiliated lawyer to file suit and handle the venue hearing (including examining the witness-advocate), then substituting the witness-advocate as counsel afterward. That maneuver would violate the rule against circumventing a disciplinary rule through the acts of another and could let a lawyer fashion his testimony to advance his own interest as advocate. On a separate question, the committee held that taking a nonsuit does not automatically end the attorney-client relationship, because the party may refile; before contacting an opposing party after a nonsuit, a lawyer must check with opposing counsel whether the party remains represented and act accordingly.

Currency note

This opinion was issued in 1998, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. Virginia later adopted Rule 3.7 (the lawyer-as-witness rule) and Rule 4.2, which may treat the pretrial-testimony question differently. Treat this page as historical context, not current guidance, and verify against current rules before relying on any specific point here.

Common questions

Q: If a lawyer testifies at a pretrial hearing, can he still try the case?

A: Under this 1998 opinion applying the former rule, no, where the testimony is on a contested issue. The committee held DR 5-102(A) required the lawyer to withdraw from the trial and did not treat the venue hearing and trial as separate proceedings.

Q: Does the witness-advocate rule apply if there is no jury?

A: Yes. The committee held the rule's policies apply to bench proceedings as well, because an interested witness can be impeached and public confidence affected whether the trier of fact is a judge or a jury.

Q: Can a stand-in lawyer handle the hearing so the testifying lawyer can take over the trial?

A: No. The committee held that using outside counsel only to file suit and handle the venue hearing so the witness-advocate could later appear would improperly circumvent the rule through the acts of another.

Q: After a nonsuit, can a lawyer contact the formerly opposing party directly?

A: Not without checking first. The committee held a nonsuit does not automatically end the representation, so the lawyer must confirm with opposing counsel whether the party is still represented before contacting that party.

Background and rules framework

The opinion was decided under Virginia's former Code of Professional Responsibility: DR 5-102(A) and DR 5-101(B)(1)-(3) (the witness-advocate rule and its exceptions), DR 1-102(A)(2) (no circumvention through another), and DR 7-103(A)(1) (no contact with a represented party). The modern analogues are Rule 3.7 (lawyer as witness) and Rule 4.2 (communication with represented persons). The committee contrasts DR 5-102(A) with Model Rule 3.7's narrower reach.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-102(A), DR 5-101(B)(1)-(3), DR 1-102(A)(2), DR 7-103(A)(1); EC 5-9 (Code of Professional Responsibility)
• ABA Model Rule 3.7(a) (contrasted; lawyer as witness)

Cases:

• Estate of Andrews v. United States, 804 F. Supp. 820 (E.D. Va. 1992); United States v. Johnston, 690 F.2d 638 (7th Cir. 1982), witness-advocate rule and its policies.

Other opinions cited:

• Virginia LEOs 963, 1389, 1432: a concluded proceeding or final order does not automatically end the representation for anti-contact purposes.

See also

• VA LEO 1849: Lawyer Testifying to a Client's Debt
• VA LEO 1752: Contacting a Represented Party

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1709.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
February 24, 1998
LEGAL ETHICS OPINION 1709

ATTORNEY FOR PLAINTIFF
TESTIFYING AT VENUE HEARING RE:
STATEMENTS BY DEFENDANT MADE
PRIOR TO SUIT BEING FILED.

You have presented a hypothetical situation in which a plaintiff's lawyer has testified in
a venue hearing about a defendant's pre-trial statements to the lawyer regarding where the
defendant conducted his business or other affairs. Under the facts you have presented,
you have asked the committee to opine as to the propriety of this same lawyer continuing
to represent the plaintiff. You indicate that the venue issue, having been resolved by the
court, will not come up again during the trial on the merits. The appropriate and
controlling disciplinary rule relative to your inquiry is DR 5-102(A), which is part of the
"witness-advocate rule" and which states:
If, after undertaking employment in contemplated or pending litigation, a
lawyer learns or it is obvious that he or a lawyer in his firm ought to be
called as a witness on behalf of his client, he shall withdraw from the
conduct of the trial and his firm, if any, shall not continue
representation in the trial, except that he may continue the
representation and he or a lawyer in his firm may testify in the
circumstances enumerated in DR 5-101(B)(1) through (3).
A lawyer may continue to conduct a trial on behalf of a client where he or a member of
his firm testifies: (1) solely to an uncontested matter or to a matter of formality and there
is no reason to believe that substantial evidence will be offered in opposition to the
testimony; (2) solely to the nature and value of legal services rendered in the case by
the lawyer or his firm to the client; or (3) where refusal to testify would work a
substantial hardship on the client because of the distinctive value of the lawyer or his firm
as counsel in the particular case. DR 5-101(B)(1)-(3).
In the facts you present, it appears that none of the three exceptions applies. The issue
of venue is neither uncontested nor a mere formality, if plaintiff's counsel would have to
testify as to defendant's statements as they relate to that issue. The "substantial hardship"
exception under DR 5-101(B)(3) is to be construed narrowly. Estate Of Andrews v.
United States, 804 F. Supp. 820, 829 (E.D. Va. 1992) citing United States v. Johnston,
690 F.2d 638, 642 n. 9 (7th Cir. 1982); Wickes v. Ward, 706 F. Supp. 290, 293 (S.D.N.Y.
1989). Nothing presented in your hypothetical demonstrates that the plaintiff's counsel or
his firm has a distinctive value to the client as a result of any long-standing relationship
with the client and familiarity with the client's affairs such that changing lawyers would
pose a "substantial hardship" to the plaintiff. Cf., Estate of Andrews v. United States,
supra.
Presumably, the question of venue would be taken up at a pre-trial hearing and
therefore any testimony of plaintiff's counsel on that matter would be outside the
presence of any jury that would hear the case on its merits. However, the policies and

Committee Opinion
February 24, 1998
considerations which support the "witness advocate" rule do not permit the committee to
restrict its application solely to matters before a jury. See, e.g., United States v. Johnston,
690 F.2d 638, 644 (7th Cir. 1982) (policy considerations supporting witness advocate
rule apply to proceedings tried to a judge). The rule is designed to protect the client's
interests in not having testimony produced on contested issues from a witness who is
obviously interested in the outcome and is thus subject to impeachment for that reason.
EC 5-9. Impeachment can occur before a judge or jury. Further, the rule is also based on
a sense of fairness to the adverse party to obviate any concern that the trier of fact might
attach undue weight to the advocate-witness's testimony. Estate of Andrews v. United
States, supra, 804 F. Supp. at 824. Finally, the rule serves to preserve the integrity of the
judicial system by, among other things, avoiding any public perception that a testifying
advocate has distorted the testimony to further his or her client's cause and prevail in the
litigation. Id.
The committee concludes that it would be improper for the plaintiff's counsel to
continue to conduct the litigation on behalf of the plaintiff having testified for the
plaintiff at the pre-trial venue hearing. Subsequent to your original request, you have
asked if the disqualification of plaintiff's counsel as trial counsel could be avoided
if: (1) plaintiff hires another lawyer, not affiliated with the witness-advocate, to file the
suit initially and to handle the pre-trial venue hearing, including the examination of the
witness-advocate; and (2) the witness-advocate enters his appearance as counsel of record
after the pre-trial hearing on venue is concluded.
There is a division of authority on whether an attorney who testifies in a pre-trial
proceeding is automatically disqualified from participating as counsel at trial. Applying
ABA Code of Professional Responsibility, DRs 5-101(B) and 5-102, one court has ruled
that these rules do not mandate a per se disqualification of a prosecutor who testified at a
pretrial suppression hearing. United States v. Johnston, supra, 690 F.2d at 645 (however
the trial courts are encouraged to substitute a new prosecutor to try the case). Under ABA
Model Rule 3.7(a), a lawyer who testifies in a pretrial proceeding is not disqualified from
representing the client at a trial. The rule states "a lawyer shall not act as an advocate at
trial in which the lawyer is likely to be a necessary witness except where. . . ." MR 3.7(a)
(emphasis added). See also, Colorado Ethics Op. 78 (1994) (MR 3.7 applies only to a
lawyer acting as an advocate at trial, and not to pre-trial matters, unless the lawyer's
testimony, if admitted at trial would reveal the lawyer's dual role). Unlike Model Rule
3.7, the language of DR 5-102(A) does not, in the committee's opinion, allow it to treat
the pretrial venue hearing and the actual trial as two separate proceedings for purposes of
the witness-advocate rule. Rather, the committee must interpret and apply DR 5-102(A)
giving effect to the plain and ordinary meaning of its terms. Also, the committee must be
mindful that the witness advocate rule is a broad prophylactic rule designed to prevent
even the appearance of impropriety. Where an attorney testifies as a witness as to some
contested pretrial issue, then later appears as an advocate for the same party on whose
behalf he testified, the court, litigants and observing public could have a distorted view of
the judicial process that would undermine confidence in the legal system.

Committee Opinion
February 24, 1998
The use of another attorney only to file suit and examine the attorney-witness, so that
the attorney-witness can then take over the case as an advocate and be substituted as
counsel, violates DR 1-102(A)(2) (a lawyer may not circumvent a disciplinary rule
through the actions of another). In addition, such a situation, if considered acceptable
under the Code of Professional Responsibility, would enable the unscrupulous lawyer to
manipulate and fashion his testimony to advance his own self-interest in prevailing as an
advocate for the client. Therefore, in the committee's opinion, the disqualification of the
witness-advocate cannot be avoided by the limited employment of outside counsel with
an understanding that the witness-advocate will appear later as counsel of record in the
same case.
You have also presented a second question regarding whether it is permissible for a
lawyer to contact an opposing party, directly and ex parte when that party was
represented by counsel in litigation after the litigation has ended in a non-suit. The
appropriate and controlling disciplinary rule relative to your inquiry is DR 7-103(A)(1)
which prohibits an attorney from communicating directly with a party that he knows to be
represented by counsel, unless he has the prior consent of opposing counsel or is
authorized by law to do so.
The committee has previously opined that the entry of a non-suit does not terminate the
representation of a party or certain duties owed to a client under an attorney-client
relationship. [ LEOs 1432, 1088, 872, 841 and DR 2-108(D)]. In two prior opinions, the
committee has concluded that it is improper for an attorney to communicate with an
adverse party that was represented by counsel during the course of a proceeding which
has been concluded and there was no suit pending. In Legal Ethics Opinion 963 the
committee opined that it is improper for an attorney to send a letter to the opposing party
concerning judgment matters during the appeal period from the general district court
when the opposing party was represented by counsel at trial. The committee applied DR
7-103(A)'s "anti-contact" rule even though no appeal had yet been filed nor had opposing
counsel indicated an appeal would be filed.
Similarly, in Legal Ethics Opinion 1389 the committee found it improper for an
attorney to communicate with an opposing party about a visitation problem after the
conclusion of litigation involving custody, support and visitation even though a final
order had been entered and there was no communication from the opposing party's
counsel that they continued to represent their client. The committee concluded that the
entry of a final order in the custody did not terminate the opposing counsel's relationship
with their client and that the presumption should be that the attorney continues to
represent the client.
The committee is of the opinion that the taking of a nonsuit pursuant to Virginia Code §
8.01-380 does not automatically terminate the attorney-client relationship because of the
ability of the party and their counsel to refile suit within the time periods prescribed in
Virginia Code § 8.01-229. Thus, when a nonsuit has been taken, before communicating
with the opposing party an attorney must contact opposing counsel and inquire as to

Committee Opinion
February 24, 1998
whether the opposing party remains represented by counsel and govern his or her conduct
accordingly.